Masakhu v Reginam (Criminal Appeal No. 485 of 1955) [1950] EACJ 443 (1 January 1950)

443

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

JULIUS MATENDECHERE s/o MASAKHU, Appellant (Original Accused) $\mathbf{v}$ .

### REGINAM, Respondent

#### Criminal Appeal No. 485 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Hooper, J.)

Murder—Provocation—Attempt to rape accused's wife—Kenya Penal Code, $\cdot$ section 18.

The accused's defence was that the deceased had made an attempt to rape the accused's wife but that this had ceased before he attacked the deceased. The prosecution had presented two alternative possible views of the facts, one of which, if accepted, showed the offence to be only manslaughter.

Held (6-1-56).—(1) The right to cause death in preventing the commission of a violent felony does not extend to a case where the attempt to committ the felony has ceased before the act which causes death.

(2) It was a misdirection for the Judge to have treated the alternative views of the facts as the contentions of the prosecution and defence respectively and to treat an important witness for the prosecution as if she were a witness for the defence.

Appeal allowed. Conviction for murder and sentence of death set aside. Conviction for manslaughter and sentence of four years' I. H. L. substituted.

No cases.

# A. O. Malik for appellant.

### Webber for respondent.

JUDGMENT (prepared by Briggs, J.).—This was an appeal from a conviction of murder, upon which the learned trial Judge had granted a certificate that the case was fit for appeal on grounds of fact or mixed law and fact. We allowed the appeal, set aside the conviction of murder and sentence of death, and substituted a conviction for manslaughter, on which we sentenced the appellant to four years' imprisonment. By a slip the Court omitted to say that the imprisonment was to be with hard labour. The formal order has not yet been drawn up, and we accordingly amend our order as to sentence by adding the words "with hard labour". We now give reasons for our decision.

Shortly after leaving a beer party one Karoli received an injury to his skull which was consistent with a very severe blow from a stick or with a fall. He died two days later. He had also bruises on the right side of his face and on his right forearm.

Two Crown witnesses, Imbugwa Matera and Kea, gave evidence that while Karoli was on his way home the appellant had attacked him, first with his fists and then with Karoli's own rungu. Imbugwa could give no reason for the attack, while Kea said that the appellant had told her not to take "her visitors", one of whom was the deceased, through his *boma*, a remark which might lead to violence after a beer party, however tragically inadequate it may appear as a motive for murder. The evidence of these two witnesses was substantially corroborated in various respects by others.

The Crown also called Dinah, one of the appellant's wives, who gave a quite different account of the facts. She said that when she was going home from the party a strange man (presumably the deceased) had thrown her to the<br>ground and attempted to ravish her. The appellant, who was following her along the path, came up and attacked the deceased with his fists as he was getting up, apparently frightened by the appellant's arrival. The deceased then ran away. The appellant did not use a stick or *rungu*.

It is clear that Dinah had consistently told this story and had given evidence to this effect at the preliminary inquiry. There was no attempt by the Crown to discredit her and no ground on which any such attempt could properly have<br>been permitted. The appellant's defence, his extra-judicial statement to a magistrate, and his statement in answer to the charge, which he adopted as his evidence at the trial, were all on the same lines as Dinah's evidence. Imbugwa and Kea both denied that there had been any attempt by the deceased to ravish Dinah. On their evidence it seems that the whole episode must have been a pure invention.

In his final address Crown Counsel put the case as one open to two different findings. He suggested that drunkenness might explain the conflict of evidence and said: "If you think that the accused was a witness of the rape of his wife, this would reduce the case to manslaughter. Not enough evidence to show conclusively that Dinah was being raped". This, had it fallen from the Court, would have been a clear misdirection as to onus, but the Court made no such error.

Counsel for the defence asked for an acquittal on the principle set out in Archbold, 33rd ed., p. 943, that "If any person attempts to rob or murdur another ... and is killed in the attempt, the slayer is entitled to acquittal, for the homicide is justifiable and the killing is without felony. The same rule applies... where a woman kills a man who attempts to ravish her.... The killing need not be in self-defence, but may be in defence of another..."

$\mathbf{r}$

We think this principle, even assuming the truth of the facts alleged by Dinah and the appellant, could not govern the case. The right to cause death in preventing the commission of a violent felony does not extend to a case like this, where the felony had been attempted, but the attempt had been unsuccessful and had ceased before the act which caused death. In our view the right of private defence under section 18 of the Penal Code was clearly exceeded, and in the circumstances the appellant would be guilty of manslaughter.

The three assessors apparently accepted Dinah's evidence, since they all found the appellant not guilty.

In his judgment the learned trial Judge did not, as it seems to us, appreciate that the prosecution's case involved two alternative possible views of the facts, one of which would lead to a verdict of murder and the other to a verdict of manslaughter. He set out the two accounts of the facts as being the contentions of prosecution and defence respectively, and as regards Dinah he said that, although she was called by the Crown, since her evidence so strongly supported the accused he would "consider her evidence as being evidence for the defence". We think that this was not merely an over-simplification, but an erroneous approach to the prosecution's evidence as a whole, and Crown counsel felt obliged to concede that, if the learned trial Judge had kept in mind the essentially alternative character of the prosecution's case, it was at least possible that he might have decided that it was not safe to convict of murder, and that nothing more grave than manslaughter had been established. Accepting that view, we considered that the conviction for murder could not stand.